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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2000-012

CASSANDRA HAWKINS

v.

NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES

December 31, 2001

New Hampshire Legal Assistance, of Portsmouth and Manchester (Kay E. Drought
and Kenneth J. Barnes on the brief, and Ms. Drought orally), for the
plaintiff.

Philip T. McLaughlin, attorney general (Mary E. Schwarzer, assistant
attorney general, on the brief and orally), for the defendant.

In 1998, the plaintiffs counsel, on behalf of the plaintiff and other families,
requested HHS to make available records of dental services provided to New Hampshire
Medicaid recipients under the age of twenty-one and of Medicaid reimbursement payments
made to their dental healthcare providers from 1993 to 1998. The plaintiff asserted that
the purpose for obtaining this information was to evaluate HHS compliance with
federal Medicaid law regarding dental services for recipients under twenty-one. In
response to the plaintiffs request, HHS provided "pre-formatted" tabular
summary reports. The plaintiff claims these reports were unresponsive to her request
because most of the data provided did not distinguish between recipients by age and the
few records specific to individuals under twenty-one offered no information regarding the
dental services provided to them.

In 1999, the plaintiff filed a petition for declaratory and injunctive relief
requesting access to the aforementioned records pursuant to RSA chapter 91-A. In her
petition, the plaintiff requested the court to find that under RSA chapter 91-A: (1) the
data sought were public records subject to disclosure; (2) HHS could be required to copy
onto tapes the requested computer data; and (3) the plaintiff was required to pay only for
the actual cost of the tape itself. HHS argued that the information was stored in the
Medicaid claims processing system as "input data," which are discrete bits of
information, and therefore did not constitute existing documents subject to disclosure
under RSA 91-A:4. HHS asserted before the trial court that none of its programs was
capable of generating the information in the format requested. In addition, the agency
contended that the plaintiff was required to pre-pay for the cost to create the documents.

The plaintiff moved to compel production of the data. HHS then moved to dismiss the
plaintiffs petition. The superior court granted HHS motion, concluding:

The plaintiff here does not simply seek a copy of a particular government document, but
rather asks the Court to order the defendant to create a new document to meet her request.
The cost of creating an entirely new data manipulation program, assembling the diverse
pieces of data, and encrypting or removing any confidential information would exceed
$10,000, by the defendants estimate. As a matter of law, RSA Chapter 91-A does not
intend such a result.

This appeal followed.

On appeal, the plaintiff argues the trial court erred in granting HHS motion to
dismiss because: (1) HHS admitted that it possessed the "input data" requested;
(2) the data constituted public records under RSA 91-A:4; and (3) the court considered the
alleged cost of compliance in determining whether the data constituted public records
under RSA 91-A:4.

"[I]n ruling upon a motion to dismiss, the trial court must determine whether the
allegations contained in the plaintiffs pleadings sufficiently establish a basis
upon which relief may be granted." Provencher v. Buzzell-Plourde Assoc., 142
N.H. 848, 852-53 (1998). In making this determination, the court should assume the truth
of the plaintiffs well-pleaded allegations of fact and construe all reasonable
inferences from them most favorably to the plaintiff. Hacking v. Town of Belmont,
143 N.H. 546, 549 (1999).

The trial courts interpretation of a statute is a question of law, which we
review denovo. Fichtner v. Pittsley, 146 N.H. __, __, 774 A.2d 1239,
1241 (2001). The starting point in any statutory interpretation case is the language of
the statute itself. Kaplan v. Booth Creek Ski Group, 146 N.H. __, __ (decided
November 20, 2001). Where the language of a particular statutory provision is at issue,
"we will focus on the statute as a whole, not on isolated words or phrases." Snow
v. American Morgan Horse Assoc., 141 N.H. 467, 471 (1996).

The information the plaintiff is requesting is derived from Medicaid claims received by
HHS, either in hard copy or electronic form. HHS argues that the information does not
constitute a public record because the unlinked electronic information is not already part
of an existing document. RSA 91-A:4, V provides:

In the same manner as set forth in RSA 91-A:4, IV, any body or agency which maintains
its records in a computer storage system may, in lieu of providing original documents,
provide a printout of any record reasonably described and which the agency has the
capacity to produce in a manner that does not reveal information which is confidential
under this chapter or any other law.

(Emphasis added.)

We have previously considered whether information stored on a computer tape is a
"public record" within the meaning of RSA 91-A:4. In Menge v. Manchester,
113 N.H. 533, 537 (1973), we recognized that a duplicate of a computerized tape of field
record cards compiled by the City of Manchester for real estate tax assessment purposes
was a public record. Likewise, a Medicaid claim form does not lose its status as a public
record simply because it is stored within a computer system.

To the extent the plaintiffs request is for copies of the individual Medicaid
claims, it does not require that HHS create new records. RSA chapter 91-A does not require
HHS to compile data into a format specifically requested by a person seeking information
under the statute. It does, however, require that public records received by HHS be
maintained in a manner that makes them available to the public. See RSA 91-A:4,
III-V. The trial court correctly ruled that HHS was not required to create a new document.
However, to the extent that the plaintiff requests the Medicaid claims compiled in their
original form, we remand for further proceedings.

The next issue is whether under RSA chapter 91-A cost is a factor that may be
considered in determining whether information is a public record. In its analysis
determining that the requested information was not a public record, the trial court used
cost as a factor. Under RSA 91-A:5, cost is not listed as an exemption to disclosure of
otherwise public information. In addition, in RSA 91-A:4, IV, where cost is addressed
directly, it is not contemplated as a factor that could prohibit disclosure. The statute
provides:

If a photocopying machine or other device maintained for use by a body or agency is
used by the body or agency to copy the public record or document requested, the person
requesting the copy may be charged the actual cost of providing the copy, which cost may
be collected by the body or agency.

RSA 91-A:4, IV. Therefore, we find that cost is not a factor in determining whether the
information is a public record.

We do not reach the question of who bears the burden of paying for the cost of
producing the information requested, because the issue is not ripe for our review.

The issues in this case foreshadow the serious problems that requests for public
records will engender in the future as a result of computer technology. Unless the
legislature addresses the nature of computerized information and the extent to which the
public will be provided access to stored data, we will be called upon to establish
accessibility on a case-by-case basis. It is our hope that the legislature will promptly
examine the Right-to-Know Law in the context of advancing computer technology.